Human Resources/8 nd 80 Pay Structure

QuestionQUESTION: Mr. Phillips,
I have questions regarding overtime pay for Health care workers in the state of Nebraska.

I am not sure who specifically handles this at our HR Department, we have a huge HR Department and my only dealings with them has been through the hiring process.

I work in the state of Nebraska - I recently moved here from Colorado and the laws appear to be completely different here.

I am not sure how many employees we have. I have been told that e are the 2nd largest employer in the state of Nebraska. We have thousands of employees.

I am the employee.

I, along with several others, are on a 7 on and 7 off schedule, meaning, I work 7 consecutive 10 hour shifts for a total of 70 hours, Wednesday to Wednesday, starting at 9pm until 7:30am. I have shift differentials for evenings, weekends, and nights. I earn overtime pay for anything over 80 hours.

From what I could research on my own, it looks like overtime should be paid after 40 hours for a workweek, unless my employer is using 8 and 80 structure, however, I do not receive overtime daily after 8 hours. They have my shift starting on a Wednesday so the first 1/2 of my shift is counted on one workweek, and the other half on the second workweek because their workweek is Sunday through Saturday. Is this how they avoid paying overtime, due to the fact that they consider our 7 day shift is over two of their "workweek"? The workweek specific to me is Wednesday to Tuesday. If this is the case, it is also my understanding that they cannot average the hours over the 14 day period to avoid paying overtime, and it would seem that this is what they are doing if they are under the 8 and 80 model. Or are they under the 40 hour model, and not paying overtime because my shift is considered split into two workweeks?

The organization I work for is a non-profit. Does that exclude them from overtime regulations. I don't think so, but thought I would ask.

Thank you for your time. I look forward to your response.

ANSWER: Kate,

Your question is a good one. If you want private responses, be sure to mark "private" when you ask, otherwise it will be possibly found online. You may not care, just letting you know. In the end, I will suggest you may be best off to talk with one of the HR representatives and ask about this, but I can try to help beforehand.

A few questions:
What specific job do you do there?
Have you always been paid an hourly rate?

Did you confirm your employer pays based on the 8/80 rule? Is this in their employee handbook ?

Last, what is it that you are asking me about ? Are you questioning whether you are getting paid overtime properly ?

Please answer the above and I'll see if I can help...

Brian

---------- FOLLOW-UP ----------

QUESTION: Brian,
I am a phlebotomist in a hospital and I have always been paid an hourly rate. I just looked in the employee handbook and it states a 40 hour work week. This is what it states:

All non-exempt employees may be eligible for overtime pay, in accordance with the Fair Labor Standards Act and applicable state laws. Hours resulting in eligibility for overtime payment must be approved by the manager prior to an employee working those hours.

In accordance with FLSA and state laws, where applicable, overtime pay is calculated in the following manner: 1½ times the employee's regular rate of pay for actual hours worked over 40 hours in a workweek.

A "workweek" starts with the first shift on Sunday and ends with the end of the last shift on the following Saturday. Shift start and end times are determined by the organization.

Only pay for actual hours worked, including payments in the following categories, are included when computing overtime pay:
•Shift differential
•Non-discretionary bonus
•Retroactive pay
•On-call premium
•Payment in forms other than cash
•Supplemental disability payments

Non-exempt employees may not hold multiple positions which, when combined, would regularly result in overtime pay.

Compensatory time is not permitted for exempt or non-exempt employees.

So my question would be -- is it lawful for the employer to have your shift start in the middle of their defined "workweek" (Sunday - Saturday) in order to avoid paying overtime? Meaning, my shift is 7 consecutive 10 hour days (70 total hours) but falls within two separate workweeks because it starts on a Wednesday and ends the following Tuesday. Their defined workweek does not align with my workweek. Does that make sense?

Below is another statement about wages on their website,

Generally, hourly employees are eligible for overtime once they've worked more than 40 hours in a workweek or eight hours per day and 80 hours in a pay period depending on the organization and applicable state laws. Nonexempt employees are protected by the Fair Labor Standards Act (FLSA), which requires employers to pay minimum wages and overtime to nonexempt employees.

Thanks for your help.

AnswerKate,

Thank you for your patience and for clarifying your question.

OK, to recap, I understand now you are a phlebotomist and you are non-exempt hourly paid employee. This seems correct... and so you would get overtime for a Sunday to Saturday workweek when your worked hours exceed 40. The 8/80 rule would not apply to you.

In my example below, lets assume there are four work weeks in a row #1, 2 , 3 and 4, and since you are either paid weekly or bi-weekly it is irrelevant as we need to see the illustration of four weeks in a row. Overtime is based on 1 7 day consecutive work week anyway, so on to the example...

Since it seems your work schedule has you starting Wednesday, working 7 days in a row 10 hours a day and ending the following work week on a Tuesday, you have 40 hours week 1 and 30 hours week 2 of your pay cycle. Total paid is 70 hours and no overtime.

It would seem to follow that when your work ends on Tuesday of the "second week", you must have off the next 7 days, Wednesday through Tuesday that would overlap pay weeks 2 and 3. You again start your 7 day rotation on Wednesday of the 3rd week and work 7 days straight, again with the last 30 hours being worked the 4th week, or Sunday, Monday and Tuesday.

Do I have it ?

In this case, it is perfectly legal for your employer to offset your workweek from the schedule and have you begin Wednesday. The schedule week and the 7 day work week for OT purposes DOES NOT need to be exactly the same time period. I attached a link for you to read on the FLSA in this situation.

Let me just clarify... IF you were to work on Saturday of the week #3 for 12 hours, then you would work 42 hours from Wednesday through Saturday. You would then come in Sunday, Monday and Tuesday to work 30 more hours. In that case, you would get overtime for week #3 for 2 hours. Your check would look something like this for 72 total hours = 70 regular hours and 2 overtime hours:

So, your employer is perfectly in the clear and is in no way violating any overtime laws.
I know this may seem unfair, but overtime applies to 40 hours + and the employer has every right to try to control overtime; whether they send people home early, don't schedule them at all, or split the schedule up over 2 weeks as is your case.

Expertise

Foreign and US university students -*PLEASE*- DO NOT waste your time asking for my opinions, comments or analysis of your homework questions. Homework questions are not answered and are rejected.
I am happy to help answer questions asked by employees and employers regarding United States based state and Federal wage and hour, OT, Fair labor standards, FMLA, COBRA, Recruiting, Interviewing techniques, employee manuals, discipline, terminations/quits, unemployment, HRIS rollout, Employee Leasing or Staffing company cost analysis, day to day scenarios, work situations and more. Essentially a well rounded HR generalist who operates Harvis, Inc., a human resource consulting and service business based in Northeastern Pennsylvania "NEPA". http://www.harvis.org

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At Harvis, Inc., we provide Human Resource products, services and advice to small businesses that may not have the time or resources to hire a full time HR department. For larger companies with HR managers in place, we compliment their expertise to help with time consuming or time sensitive projects like updating policy manuals, screening and interviewing and more. We make workplaces better by becoming that 1/2 person they need to help handle HR responsibilities on a daily, weekly or monthly basis.
Formerly responsible for all Human Resource activity for a staffing agency with 2,500 annual employees as well as an employee leasing / PEO business with 1,500 annual employees. Designed and implemented the HR structure to support hundreds of clients in excess of $ 500 million in payroll volume over career in Human Resources.

Organizations* President 2006- Harvis Inc. HR Services
* President 2010-13 Business Association of the Greater Shickshinny Area - Shickshinny PA
* President 2013- ShickshinnyForward Not for Profit Community Long Term Revitalization Organization
and former member of varios Chambers of Commerce and HR Taskforce, former President of NBC Business Club 2 years

Education/CredentialsBloomsburg University - 1993 BS Marketing, Bloomsburg Pennsylvania and
Luzerne County Community College - 1991 Business Administration, Nanticoke Pennsylvania

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